June 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-04-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Lihotz and St. John.
Following a jury trial, defendant J.C. was found guilty of second-degree aggravated sexual assault, N.J.S.A. 2C:14-2b (count two); third-degree criminal sexual contact, N.J.S.A. 2C:14-3a (amended count three);*fn1 and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count five). Defendant was sentenced to an extended term, N.J.S.A. 2C:44-3(a), of eighteen-years imprisonment with nine years of parole ineligibility on count two*fn2 plus a consecutive term of eighteen-months imprisonment with nine months of parole ineligibility on count five.
Defendant appeals his conviction and sentence, raising the following points for our consideration:
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN IMPOSING AN EXTENDED TERM SENTENCE.
DEFENSE COUNSEL WAS INEFFECTIVE DUE TO HIS REFUSAL TO ALLOW DEFENDANT TO TESTIFY.
THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT TWO ESSENTIAL ELEMENTS OF SEXUAL ASSAULT AS TO AGE.
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT PHYSICAL FORCE WAS USED AGASINST B.K.
DEFENSE COUNSEL WAS NOT EFFECTIVE IN HIS OBJECTIVE DECISION TO NOT CALL ADDITIONAL WITNESSES.
THE STATE DID NOT PROVE THAT DEFENDANT WAS ACTING IN LOCO PARENTIS.
Except for correcting the degree of the offense on count three in the judgment of conviction, we affirm the judgment in all other respects.
On appeal, the record discloses the following facts and procedural history. Because defendant asserts the verdict is against the weight of evidence, we set forth the prurient details adduced at trial regarding the sexual assaults of the two victims, S.W. and B.K. S.W. was born in 1981 and was twenty-eight at the time of trial. She testified regarding the assaults upon her by defendant and certain facts relating to the incident involving B.K. Defendant began a romantic relationship with F.C., S.W.'s mother, in 1982. During her childhood years, S.W. lived with F.C. and defendant, who S.W. believed to be her father. F.C. testified that defendant "was part of [S.W.'s] life, we were all a part of her life . . . it was a family, . . . when we had Christmases and we had Thanksgiving, it was a family thing. It wasn't nothing separate, [defendant] was there for all three of the children." Also, defendant undertook some of the disciplinary obligations and other parental activities.
S.W. was approximately ten years old when defendant first entered her bedroom at night, touched her legs, and digitally penetrated her vagina. He began performing cunnilingus on S.W. when she was twelve. Although S.W. did not know how many times defendant sexually assaulted her, she stated that it happened "randomly . . . maybe 50" times, three to four times each month for three years. She did not recall telling defendant to stop, but would regularly "push away and roll over" or pretend she was asleep. The assaults stopped when S.W. was thirteen, on the summer night she told defendant to "get the F out of [her] room."
F.C. testified that she experienced problems with S.W. commencing when she turned thirteen: "[S.W.] was defiant. She's stubborn and she didn't want to listen to nothing, she wanted to go on her own." F.C. stated that S.W. would sometimes sneak out by leaving through the window in her room, and F.C. would ask defendant to bring her back home. F.C. also testified that S.W. "moved out of that room and . . . into the other room, [and] instead of her going out the window, [F.C.] would knock on the door and find boys in her bedroom that came through the window." F.C. stated that as a disciplinarian, defendant was "the hard one."
S.W. was fourteen years old when she learned, after finding child support papers from another man, defendant was not her biological father. On March 29, 1998, during an argument, S.W., then seventeen, told defendant that she knew he was not her biological father. During the argument, S.W. also called him a "child molester" and then called 9-1-1. S.W. left the house before the police arrived.
The next day, F.C. told S.W. she could live in Florida with S.W.'s aunt and B.K., her cousin. Later that day, after a Howell Township police officer called the family home, F.C. told S.W. to "tell [the officer] it didn't happen." The police report memorializing the substance of the call stated, "I then personally spoke to [S.W.] who also reassured me that there was no truth in the statement she made yesterday, states that during the heat of the argument, she made the allegations out of anger."
S.W. testified she retracted her accusation because she was moving to Florida and had no intention of returning. Further, she feared her mother would lose defendant's financial support were he arrested. While living in Florida with her aunt and cousin, S.W. told her aunt about the sexual assaults by defendant. After five or six months, S.W. moved back in with F.C. and defendant in New Jersey. S.W. returned home because she "missed her friends" and knew it would be temporary. Defendant did not assault S.W. during this period, and S.W. moved out after she graduated from high school.
B.K. was born in 1990. She visited her cousin S.W., her aunt, F.C., and defendant every summer. According to B.K., she was very close to defendant, and he was her favorite uncle and best friend.
On December 27, 2008, B.K., at the age of eighteen, moved from Florida to New Jersey and temporarily stayed with F.C. and defendant. B.K. slept on a couch in the living room. On January 5, 2009, defendant had reconstructive knee surgery. After the surgery, defendant used crutches and wore a soft cast with an exterior leg brace. He was in pain, had trouble walking, and was unable to put on his shoes or sit on the couch, which was too low to the ground. Shortly after the surgery, B.K. and defendant's friend, M.S., were talking with defendant, who was laying in bed. B.K. and M.S. were standing near defendant's bed when defendant, "joking around," asked M.S., "isn't [B.K.] pretty, you know would you bang her and stuff like that?" M.S. replied no, to which defendant tapped B.K.'s leg and said, "I wouldn't bang her, I'd just eat her. . . ." M.S. understood this comment to mean defendant would perform cunnilingus on B.K. Defendant made similar comments to B.K. after the surgery, including "you're not blood, just sit on my face. I don't want to screw you, I just want to eat you alive."
On the evening of January 10, 2009, B.K. and defendant went to a party in Philadelphia. Defendant drove even though he had surgery five days earlier. They returned home around 1:30 a.m., and B.K. went to the kitchen to bake a cake for her aunt's birthday. Defendant was also in the kitchen, and F.C. was sleeping in her bedroom. A.C., who also resided in the family home, was at work at this time. B.K. was standing in front of the sink when defendant "put his arm's around [her;] . . . his hands were in [her] sweater . . . and he kissed [her] neck." He told B.K. to not fall asleep or he would "be highly upset with [her]." B.K. did not respond. At approximately 3:30 a.m., A.C. returned home. B.K. finished baking, left defendant and A.C. in the kitchen talking, went to the living room, and fell asleep on the couch.
Thereafter, B.K. was awakened by defendant, who was sitting on the coffee table in front of the couch, touching her shoulders, breasts, and down her pants. B.K. did not say anything to defendant, but rolled over to face the couch. Defendant then put his hand under her shirt and bra and started touching her breasts. Although B.K. remained silent, she turned around to face defendant to make him aware that she was awake, knew he was touching her, and that she "wasn't okay with it." Defendant then placed his hands under her underwear and digitally penetrated her. In response, B.K. "tightened [her] legs." Next, defendant pulled her sweat pants and underwear down, and separated her legs. B.K. was "terrified and scared" and told defendant to stop. Defendant did not, and instead took a bottle of K-Y Jelly and rubbed it on B.K.'s stomach, vagina, and breasts, and then performed cunnilingus on her. B.K. said nothing, but tightened her legs again to let him know she was "not okay with what he was doing to [her]." B.K. testified that she did not resist because, "He's huge. I'm a little girl and I was scared that he would hurt me." After fifteen to twenty-five minutes, defendant stopped, kissed her on her forehead, and told her "everything is going to be okay." B.K. did not call the police or tell anyone about the incident.
That evening, after going out with her family for her aunt's birthday dinner, she went to S.W.'s house to spend the night. B.K. told her cousin and her cousin's fiance only that defendant had been making sexual comments to her, but not what defendant had done to her. The next day, B.K. went to defendant's house, retrieved her belongings, and moved in with S.W. One week later, she told S.W. and her fiance what defendant did to her. S.W. responded that she believed her because defendant had done the same thing to her. On January 18, 2009, S.W. went to the Howell Township police department and reported what had transpired.
Defendant was indicted and a jury trial was held before Judge Francis R. Hodgson, Jr. from April 13 through April 22, 2010, at which time the jury returned the guilty verdicts. At the close of the State's case, defendant made a motion for a judgment of acquittal pursuant to Rule 3:18-1. When considering such a motion, the judge is bound to consider the evidence in a light most favorable to the State. State v. Reyes, 50 N.J. 454, 458-59 (1967). Applying that standard, the judge denied the motion.
After the guilty verdicts, the State successfully moved to have defendant sentenced to an extended term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C:43-3a. On April 29, 2010, defendant unsuccessfully moved for a new trial, pursuant to Rule 3:20-1, on counts two and three with respect to the sexual assaults of S.W.
On appeal, defendant argues that the verdict was against the weight of evidence, and that there was insufficient evidence to prove S.W. was less than thirteen years old at the time of the sexual assault or that defendant was at least fours years older than S.W. at that time, each a necessary element of sexual assault in violation of N.J.S.A. 2C:14-2(b). Defendant also contends there was insufficient evidence to prove he stood in loco parentis within the household, a necessary element of proof of third-degree criminal sexual contact. N.J.S.A. 2C:14-3a.
We conduct a de novo review of the denial of defendant's motion for acquittal, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Reyes, supra, 50 N.J. at 459.]
A motion for a new trial is subject to the discretion of the trial judge. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Therefore, on appeal, [o]ur scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Moreover, we will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." [State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (alterations in original) (quoting Russo, supra, 333 N.J. Super. at 140).]
The trial judge's ruling on a motion for a new trial based upon insufficient evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. "In examining a trial court's denial of a motion for a new trial based on insufficiency of the evidence, an appellate court may not reverse that ruling 'unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Afanador, 134 N.J. 162, 178 (1993) (quoting R. 2:10-1). "The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Ibid. (quotation and citation omitted). "[A] reviewing court should not overturn the findings of a jury merely because the court might have found otherwise if faced with the same evidence." Ibid. (citation omitted). "Faith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." Ibid. "Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.
Defendant argues that because his leg was physically impaired, and because both A.C. and F.C. slept in proximity to the living room couch, defendant could not have assaulted B.K. without their knowledge, and therefore B.K.'s testimony lacked credibility. Further, defendant contends that because S.W. could not recall the dates and times of the assaults, failed to tell her mother or anyone else about the assaults when they occurred, denied the assaults in the 2008 telephone call with police, and resided in physical circumstances that would make discovery of the assaults by other members of the household likely, it "is just not plausible that the sexual assault ever occurred." We disagree.
The jury had the opportunity to observe and hear the witnesses as they testified, and to assess their credibility. Here, the record amply supports that defendant sexually assaulted both S.W. and B.K. As such, the jury's verdict is supported by sufficient, credible evidence in the record, and we must respect the jury's determination.
Defendant contends in Point Four that the State did not prove beyond a reasonable doubt that S.W. was less than thirteen years old and defendant was at least four years older at the time of the assaults. N.J.S.A. 2C:14-2(b) provides "An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." S.W. testified that the sexual contact occurred over fifty times, three to four times per month, starting when she was ten years old and ending when she was thirteen years old. Her uncontradicted testimony supports the first element of the offense.*fn3
As to proof of the element of the crime that defendant was at least four years older then S.W., the State is permitted to prove age through inferences, State v. Lassiter, 348 N.J. Super. 152, 161-62 (App. Div. 2002), and there was substantial circumstantial evidence of defendant's adult status in this case from which a reasonable jury could find guilt of the charge beyond a reasonable doubt. See Reyes, supra, 50 N.J. at 459. F.C.'s relationship with defendant commenced when S.W. was one year old and she believed defendant was her biological father for the first fourteen years of her life.
More significantly, although defendant's demeanor while sitting at counsel table may not be considered as evidence against him, State v. Gould, 123 N.J. Super. 444, 448-49 (App. Div.), certif. denied, 64 N.J. 312 (1973), this proscription does not extend to evidence that the jurors may adduce with their own eyes. "Jurors are expected to use their common sense and experiences" to determine "where the truth lies," ibid., and thus are permitted to consider defendant's physical appearance as evidence of his age relative to the victim. See State v. Collins, 262 N.J. Super. 230, 236 (App. Div. 1993) (citing State v. Lefante, 12 N.J. 505, 513 (1953) (The defendant "knows his own age better than any one else and so he does not need proof on the subject. Nor in many cases does the jury require such proof" because, in this case, "the eyes of the jurors told them that the 53 year old defendant was 'of the age sixteen or over.'")). Here, S.W.'s testimony, the testimony of the other witnesses, and "the eyes of the jurors" provided ample proof that defendant was at least four years older than S.W.
In Point Five, defendant argues the State did not prove that he used physical force or coercion against B.K. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using "physical force" or "coercion." N.J.S.A. 2C:14-3(b). Defendant's actions when continuing his sexual contact with B.K. even though she rolled away, tightened her legs, and told him to stop, clearly evinces a lack of consent by B.K. and the use of physical force by defendant.
While the Code does not define the term "physical force," the State contends that defendant's conduct included the use of "physical force" as that term was interpreted by our Supreme Court in In re M.T.S., 129 N.J. 422 (1992). We agree with the State that M.T.S. equated "physical force" in the sexual offense statutes with an act of sexual contact or penetration and the absence of affirmative and freely-given consent by the alleged victim. Id. at 444. The Court held that the State was not required to prove physical force "extrinsic to the sexual act." Ibid. See also State v. Triestman, 416 N.J. Super. 195, 221 (App. Div. 2010) (no separate physical force needed to prove criminal sexual contact where defendant touched adult victim's breast and attempted to kiss her). Here, B.K.'s testimony amply evinces not only lack of consent on her part, but also the use of actual physical force by defendant.
Defendant contends in Point Seven that the State did not prove defendant was acting in loco parentis with regard to S.W. We disagree. The Court defined that term in Hardwicke v. American Boychoir School, 188 N.J. 69, 91 (2006):
In loco parentis literally translated means "in the place of a parent." Black's Law Dictionary 803 (8th ed. 2004). Black's Law Dictionary further describes the phrase as "relating to, or acting as a temporary guardian or caregiver of a child, taking on all or some of the responsibilities of a parent." Ibid. Typically, the in loco parentis relationship is temporary in nature, Miller v. Miller, 97 N.J. 154, 162 (1984) (quoting A.S. v. B.S., 139 N.J. Super. 366, 369-70 (Ch. Div. 1976), aff'd, 150 N.J. Super. 122 (App. Div. 1977)), and "is reserved for individuals who function as a parent." Dale v. BSA, 160 N.J. 562, 602 (1999), rev'd on other grounds, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). "Characteristics of that relationship include 'the responsibility to maintain, rear and educate the child,' as well as the duties of 'supervision, care and rehabilitation.'" Ibid. (citations omitted).
We find defendant's contention on this point to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
In Points Three and Six of his brief, defendant alleges he was denied the effective assistance of counsel due to counsel's refusal to allow him to testify at trial. This assertion is not supported by the record, which discloses that counsel indeed discussed the right to testify with defendant. More significantly, the judge engaged in an extensive colloquy with defendant concerning his right to testify. The judge asked defendant, "Has anyone threatened, forced or coerced you in making that decision?" to which defendant replied, "No Sir." The judge also asked if it was his decision not to testify. Defendant replied, "My decision."
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also Fritz, supra, 105 N.J. at 58.]
In essence, the first prong of the Strickland/Fritz test requires a determination of whether counsel's performance on these matters fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970). The second prong requires defendant's showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
"In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. l691, 1697, 48 L. Ed. 2d 126, 135 (1976). See also State v. Castagna, 376 N.J. Super. 323, 360 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006). Counsel is ineffective only in those "'rare instances' [that] trial mistakes [are] of such magnitude 'as to thwart the fundamental guarantee of [a] fair trial.'" Castagna, supra, 376 N.J. Super. at 360 (quoting State v. Dennis, 43 N.J. 418, 428 (l964)).
Defendant argues he would have testified that the incidents did not happen and could not have happened without detection by the other members of his residence. We are satisfied that none of these allegations have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In Point II of his brief, defendant contends that the judge committed reversible error by imposing an excessive sentence even though he concedes on appeal that the judge was required to sentence him to an extended term.
In deciding the State's motion, the trial judge determined whether defendant was eligible for sentencing as a persistent offender under N.J.S.A. 2C:44-3(a), which provides:
A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
The judge found that defendant met the statutory criteria. The judge also noted that defendant had five prior indictable convictions, the most recent of which was within the last ten years.
Pursuant to State v. Pierce, 188 N.J. 155, 169 (2006), "once the court finds that [the] statutory eligibility requirements are met, the maximum sentence to which defendant may be subject . . . is the top of the extended-term range." (Emphasis added). If the statutory requirements for an extended-term sentence are met, "the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Ibid.
Consequently, the range of sentencing available for the second-degree conviction in this matter was between five and twenty years. Defendant's eighteen-year sentence was well within the extended-term range for which he was clearly eligible. After a careful review of his arguments on appeal, we find that defendant's sentence is not manifestly excessive.
We now address whether by finding applicable aggravating factor number six (the extent and severity of defendant's prior record), N.J.S.A. 2C:44-1(a)(6), and also granting the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), the judge "double counted" defendant's criminal record. Given defendant's extensive criminal history, we disagree with defendant's contention.
In addition to factor six, the judge found two additional aggravating factors applied to defendant: number three (the risk the defendant will commit another offense); and number nine (the need to deter defendant and others). N.J.S.A. 2C:44-1(a)(3) and
(9). The judge afforded "great weight" to these three aggravating factors, while finding only one mitigating factor, number eleven (the defendant's imprisonment would entail excessive hardship because of his medical condition), N.J.S.A. 2C:44-1(b)(11), which he afforded "very minimal" weight.
Our review of the record convinces us that the judge's analysis of the aggravating and mitigating factors was "based upon competent credible evidence in the record . . . ." State v. Roth, 95 N.J. 334, 364 (1984). In sentencing, the judge must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how [he or she] arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354 (1987)). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)). See also Roth, supra, 95 N.J. at 364-65.
The trial judge weighed the three aggravating factors against the very minimal weight of the one mitigating factor and determined that defendant should receive a term of eighteen-years imprisonment with nine years of parole ineligibility for counts two and three, which were merged, as well as a consecutive term of eighteen-months imprisonment with nine months of parole ineligibility for count five. There was no manifest injustice in the length of defendant's sentence and period of parole ineligibility, and we defer to the judge in his weighing the aggravating and mitigating factors appropriately. State v. Bieniek, 200 N.J. 601, 612 (2010); Roth, supra, 95 N.J. at 363-65.
Lastly, defendant asserts that the judge placed too much weight on the aggravating factors, and did not sufficiently address the Yarbough*fn4 factors regarding consecutive sentencing. Further, he challenges the imposition of a consecutive sentence for the fourth-degree criminal sexual contact with respect to B.K.
Our review of a sentence is limited. Roth, supra, 95 N.J. at 364. We do not substitute our judgment for that of the sentencing judge or impose our own view of an appropriate sentence. Bieniek, supra, 200 N.J. at 607-08; State v. Evers, 175 N.J. 355, 386 (2003). If the judge followed the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990).
The Supreme Court has provided guidelines for imposing consecutive or concurrent sentencing in Yarbough. These guidelines state:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses. [Yarbough, supra, 100 N.J. at 643-44.]
The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)) (internal quotation marks omitted).
Although the judge did not state the Yarbough factors explicitly, the record reveals that the consecutive sentence was not unreasonable, given that the second-degree aggravated sexual assault with respect to S.W. was distinct from the fourth-degree criminal sexual contact with respect to B.K. Further, the assaults were distinct in nature and not temporally related; therefore, the separate punishments for the independent offenses was proper and not a product of "double counting." See Yarbough, supra, 100 N.J. at 643 ("[T]here can be no free crimes in a system for which the punishment shall fit the crime[.]").